Actions, how commenced. Summons may issue within a year. Defendant may waive summons. Parties may appear in person or by attorney When guardian necessary, how appointed. SECTION 841. Defendant may waive summons. 839. 842. Parties may appear in person or by attorney. 843. When guardian necessary, how appointed. 844. Summons, how issued, directed, and what to contain. 845. Time for appearance of defendant. 846. Alias summons. 847. Same. 848. Summons, limitation upon time of service. 849. Summons, by whom and how served and returned. 850. Hour for appearance. An action in a Justice's Court is commenced by filing a complaint and issuing a summons thereon, or by the voluntary appearance and pleading of the parties. 840. (§ 538.) The Court must indorse on the complaint the date upon which it was filed, and at any time within one year thereafter the plaintiff may have summons issued. 841. At any time after the complaint is filed the defendant may, in writing, or by appearing and pleading, waive the issuing of summons. 842. (§ 534.) Parties in Justices' Courts may appear and act in person or by attorney; and any person, except the Constable by whom the summons or jury process was served, may act as attorney. 843. (§ 539.) When a guardian is necessary, he must be appointed by the Justice, as follows: 1. If the infant is plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he is of the age of fourteen years or upwards; if under that age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed to act as such, and to be responsible for costs if he fail in the action, must be first filed with the Justice; 2. If the infant is defendant, the guardian must be appointed at the time the summons is returned, or before the pleadings. It is the right of the infant to nominate his own guardian, if the infant is over fourteen years of age, and the proposed guardian is present and consent in writing to be appointed. Otherwise, the Justice may appoint any suitable person who gives. such consent. 844. (§ 540.) The summons must be directed to the defendant and signed by the Justice, and must contain: 1. The title of the Court, name of the county and city, or township, in which the action is commenced, and the names of the parties thereto; 2. A sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him; 3. A direction that the defendant appear and answer before the Justice, at his office, at a time specified in the summons; 4. In an action arising on a contract, for the recov ery of money or damages only, a notice that unless the defendant so appears and answers the plaintiff will take judgment for the sum claimed by him (stating it); 5. In other actions, a notice that unless defendant so appears and answers the plaintiff will apply to the Court for the relief demanded. If the plaintiff has appeared by attorney, the name of the attorney must be indorsed on the summons. Summons, directed how issued, and what to contain. 845. The time specified in the summons for the Time for appearance of the defendant must be as follows: 1. If an order of arrest is indorsed upon the summons, forthwith; 2. In all other cases, not less than three nor more than twelve days from its date. appearance of defendant. Alias summons. Same. Summons, limitation 846. If the summons is returned without being served upon any or all of the defendants, the Justice, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed ninety days from its date. 847. The Justice may, within a year from the date of the filing of the complaint, issue as many alias summons as may be demanded by the plaintiff. 848. The summons cannot be served within two upon time days of the time fixed therein for the appearance of the defendant. of service. Summons, by whom and how served and returned. Hour for appearance. 849. The summons may be served by a Sheriff or Constable of the county, or by any male resident of the county over twenty-one years of age, not a party to the suit, and must be served and returned as prescribed in Title V, Part II, of this Code; or it may be served by publication; and Sections 413 and 412, so far as they relate to the publication of summons, are made applicable to Justices' Courts, the word "Justice" being substituted for the word "Judge," wherever the latter word occurs. 850. The parties are entitled to one hour in which to appear after the time fixed in the summons, but are not bound to remain longer than that time, unless both parties have appeared, and the Justice being present is engaged in the trial of another cause. CHAPTER III. PLEADINGS IN JUSTICES' COURTS. SECTION 851. Form of pleadings. 852. Pleadings in Justices' Courts. 853. Complaint defined. 854. When demurrer to complaint may be put in. 856. If the defendant omits to set up counter claim. 858. Proceedings on demurrer. 859. Amendment of pleadings. 860. Answer or demurrer to amended pleadings. 851. Pleadings in Justices' Courts: pleadings. 1. Are not required to be in any particular form, but Form of must be such as to enable a person of common understanding to know what is intended; 2. May, except the complaint, be oral or in writing; 3. Must not be verified, unless otherwise provided in this Title; 4. If in writing, must be filed with the Justice; 5. If oral, an entry of their substance must be made in the docket. 852. (§ 570.) The pleadings are: Pleadings in Justices' Courts. defined. 853. The complaint in Justices' Courts is a con- Complaint cise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based. When to com 854. The defendant may, at any time before demurrer answering, demur to the complaint. plaint may be put in. Answer. If the defendant up counter 855. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter claim, upon which an action might be brought by the defendant against the plaintiff in a Justice's Court. 856. If the defendant omit to set up a counter omits to set claim in the cases mentioned in the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. claim. When plaintiff to answer. 857. When the answer contains new matter in may demur avoidance, or constituting a defense or a counter claim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such demurrer. Proceedings on demurrer. Amondment of pleadings. 858. The proceedings on demurrer are as follows: 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the Court allows, amend his complaint; 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith; 3. If the demurrer to an answer is sustained, the defendant may amend his answer within such time, not exceeding two days, as the Court may allow; 4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed. 859. Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be |